TORTURE: A FEASIBLE MEANS FOR NATIONAL SECURITY STRATEGY

Transcription

1 TORTURE: A FEASIBLE MEANS FOR NATIONAL SECURITY STRATEGY A thesis presented to the Faculty of the U.S. Army Command and General Staff College in partial fulfillment of the requirements for the degree MASTER OF MILITARY ART AND SCIENCE Strategy by NICOLE J. STANFORD, MAJ, USA B.A., Virginia Polytechnic Institute and State University, Blacksburg, Virginia, 1995 Fort Leavenworth, Kansas 2007 Approved for public release; distribution is unlimited.

2 REPORT DOCUMENTATION PAGE Form Approved OMB No Public reporting burden for this collection of information is estimated to average 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing this collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to Department of Defense, Washington Headquarters Services, Directorate for Information Operations and Reports ( ), 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA Respondents should be aware that notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information if it does not display a currently valid OMB control number. PLEASE DO NOT RETURN YOUR FORM TO THE ABOVE ADDRESS. 1. REPORT DATE (DD-MM-YYYY) TITLE AND SUBTITLE 2. REPORT TYPE Master s Thesis 3. DATES COVERED (From - To) Aug Jun a. CONTRACT NUMBER Torture: A Feasible Means For National Security Strategy 5b. GRANT NUMBER 5c. PROGRAM ELEMENT NUMBER 6. AUTHOR(S) Stanford, Nicole J. 5d. PROJECT NUMBER 5e. TASK NUMBER 5f. WORK UNIT NUMBER 7. PERFORMING ORGANIZATION NAME(S) AND ADDRESS(ES) U.S. Army Command and General Staff College ATTN: ATZL-SWD-GD 1 Reynolds Ave. Ft. Leavenworth, KS PERFORMING ORGANIZATION REPORT NUMBER 9. SPONSORING / MONITORING AGENCY NAME(S) AND ADDRESS(ES) 10. SPONSOR/MONITOR S ACRONYM(S) 11. SPONSOR/MONITOR S REPORT NUMBER(S) 12. DISTRIBUTION / AVAILABILITY STATEMENT Approved for public release; distribution is unlimited. 13. SUPPLEMENTARY NOTES 14. ABSTRACT As a part of the response to the Al Qaida attacks on 11 September 2001, the United States found itself having to answer many difficult questions regarding its action in the Global War on Terrorism. One of the most contentious was the use of torture against captured enemy fighters. The United States, a strong proponent for humanitarian law, soon found itself criticized for its treatment of detainees. As a result, commentators and politicians have had endless debates about interrogation techniques and the legal applicability of international law and treaties to a nonstate enemy. The central research question derived from these issues is: Is torture a viable tool for use in achieving goals as outlined in the 2006 National Security Strategy? Interrogational torture was examined from the following standpoints: legal, effectiveness, and ethical. Results showed that torture is wrong. The next step applied the analytical results against the ethical decision-making triangle and also concluded that from the three standpoints torture was wrong and not a feasible means of achieving the United States national security objectives. 15. SUBJECT TERMS torture, 2006 National Security Strategy, ethical decision making, legal, security goals, effectiveness 16. SECURITY CLASSIFICATION OF: 17. LIMITATION OF ABSTRACT a. REPORT b. ABSTRACT c. THIS PAGE Unclassified Unclassified 18. NUMBER OF PAGES Unclassified UU 91 19a. NAME OF RESPONSIBLE PERSON 19b. TELEPHONE NUMBER (include area code) Standard Form 298 (Re. 8-98) v Prescribed by ANSI Std. Z39.18

3 MASTER OF MILITARY ART AND SCIENCE THESIS APPROVAL PAGE Name of Candidate: MAJ Nicole J. Stanford Thesis Title: Torture: A Feasible Means for National Security Strategy Approved by: Jackie D. Kem, Ph.D., Thesis Committee Chair Paul D. VanGorden, M.S., Member Timothy H. Civils, M.S., Member Accepted this 15th day of June 2007 by: Robert F. Baumann, Ph.D., Director, Graduate Degree Programs The opinions and conclusions expressed herein are those of the student author and do not necessarily represent the views of the U.S. Army Command and General Staff College or any other governmental agency. (References to this study should include the foregoing statement.) ii

4 ABSTRACT TORTURE: A FEASIBLE MEANS FOR NATIONAL SECURITY STRATEGY, by MAJ Nicole J. Stanford, 82 pages. As a part of the response to the Al Qaida attacks on 11 September 2001, the United States found itself having to answer many difficult questions regarding its action in the Global War on Terrorism. One of the most contentious was the use of torture against captured enemy fighters. The United States, a strong proponent for humanitarian law, soon found itself criticized for its treatment of detainees. As a result, commentators and politicians have had endless debates about interrogation techniques and the legal applicability of international law and treaties to a nonstate enemy. The central research question derived from these issues is: Is torture a viable tool for use in achieving goals as outlined in the 2006 National Security Strategy? Interrogational torture was examined from the following standpoints: legal, effectiveness, and ethical. Results showed that torture is wrong. The next step applied the analytical results against the ethical decision-making triangle and also concluded that from the three standpoints torture was wrong and not a feasible means of achieving the United States national security objectives. iii

5 ACKNOWLEDGMENTS I would like to thank Mr. Michael Hoffman for providing answers and clarifications for my questions regarding the legal issues of torture. I would also like to thank Dr. Jack Kem and the rest of my committee for their patience and support. iv

6 TABLE OF CONTENTS v Page MASTER OF MILITARY ART AND SCIENCE THESIS APPROVAL PAGE... ii ABSTRACT... iii ACKNOWLEDGMENTS... iv ILLUSTRATION... vii TABLES... vii CHAPTER 1. INTRODUCTION...1 Limitations and Delimitations... 7 Key Definitions... 7 CHAPTER 2. LITERATURE REVIEW...11 Legal Considerations Ethical Considerations Religious Considerations Effectiveness of Torture CHAPTER 3. RESEARCH METHODOLOGY...24 CHAPTER 4. ANALYSIS...28 Legal Considerations Effectiveness of Torture Ethical Arguments Torture and the Ethical Triangle CHAPTER 5. CONCLUSIONS AND RECOMMENDATIONS...70 Conclusions Legal Conclusions Effectiveness Ethical Considerations Ethical Decision-Making Model Recommendations Standardized Definition of Torture Update and Refine the Geneva Conventions of

7 Torture Models Effects of Interrogational Torture REFERENCE LIST...76 INITIAL DISTRIBUTION LIST...82 CERTIFICATION FOR MMAS DISTRIBUTION STATEMENT...83 vi

8 ILLUSTRATION Page Figure 1. Scale of Torture Arguments...52 TABLES Page Table 1. Initial Conclusions...61 Table 2. Ethical Decision-Making Triangle Conclusions...68 vii

9 CHAPTER 1 INTRODUCTION In the wake of the eleventh of September terrorist attacks on America, many things the nation s leaders once took for granted changed. One of the major changes initiated as a result of these attacks was national security policy. President George W. Bush viewed the attacks on the World Trade Center and the Pentagon as an act of war. One particular problem the country faced with this was the fact that the organization that carried out these attacks was not a state but a group of Islamic terrorists receiving explicit support from the government of Afghanistan. As a part of his response, President Bush declared that the country was at war with Al Qaida and any government that supported them. In the wake of this declaration of the Global War on Terrorism (GWOT), the United States found itself having to answer many difficult questions. One of these questions that would eventually cause an international outcry was the use of torture against captured enemy fighters. The United States, a strong proponent for humanitarian law, soon found itself criticized for its treatment of detainees as well as its use of secret prisons. In short, the international community accused the United States of committing acts of torture. As a result of these accusations, commentators and politicians have had endless debates about torture warrants, the use of waterboarding, stress positions and other interrogation techniques, and legal applicability of international law and treaties to a nonstate enemy. In light of this controversy, the purpose of this study is therefore to examine the major arguments both for and against the use of torture, to examine these arguments against an ethical decision-making model, and to see if torture is really a 1

10 feasible resource for the United States to employ in pursuit of its goals as defined in the 2006 National Security Strategy. In the course of the debate on torture, many issues seem to exacerbate the torture issue. One of the main arguments deals with the application of international humanitarian law and the unconventional nature of Al Qaida and its associates. Al Qaida is not a state but has in the past received state support. Al Qaida, an organization calling for the return of the Caliphate and society based on fundamentalist Islamic law, is a decentralized organization with an unknown number of active and inactive operatives that cross international borders, often without the knowledge of the country s government. Its tactics include deliberately targeting and killing mass numbers of legal noncombatants, taking hostages, torturing them, and eventually killing them. It is also a master at manipulating the media, using news outlets, such as Al Jazeera, to showcase to the world their grisly successes. As a result of this, there are differing views on whether or not the fight against Al Qaida constitutes a war (as the United States believes) or that the fight against Al Qaida is a law enforcement mission, a tactic practiced by the Spanish and other European governments. In accordance with President Bush s declaration that the United States must fight terrorism as though it were fighting a war, governmental organizations have conducted activities that at the very least can be called questionable and at the worst, torture. The United States runs a detention facility in Guantanamo Bay, Cuba, where many detainees from Iraq, Afghanistan, and other anti-terror operations have been held for interrogation indefinitely. There have been many questions that have arisen from this practice: What is the legal status of these detainees? Do the Geneva Conventions apply and if so how? 2

11 What interrogation practices are being used? And How are detainees final status determined--military tribunals, Uniform Code of Military Justice, federal court? Reports from organizations, such as Amnesty International, Human Rights Watch, and the International Committee of the Red Cross (ICRC), say that torture is common in Guantanamo, not only in the form of interrogation techniques, but also in the form of indefinite confinement, no trials, and extraordinary rendition. European leaders as well as American political leaders have denounced these practices. Other responses to the GWOT have incurred international objections. One of the first was the establishment of secret Central Intelligence Agency (CIA) run detention facilities designed to hold high-level terrorist suspects. Some believe the intent behind this was to evade United States laws requiring that suspects have access to lawyers and to allow the use of special interrogation techniques that many claim amount to torture. Also considered torture is the secret nature of the detention; these prisoners have no ability to communicate their detention with the outside world. To many, this is a severe violation of international law and is not far from the abuses of rulers like Joseph Stalin and Augusto Pinochet. Several European and North American governments have opened inquiries regarding this practice (The Washington Post [Washington, D.C.], 2 November 2005). Many of these ghost detainees have since been sent to Guantanamo, but the debate on them and the facility continues. Another incident that shocked the world and caused outrage among the Arab and the rest of the world was the photos showing United States soldiers obviously abusing prisoners at the Abu Ghraib detention facility in Iraq. Although the United States has tried and convicted over fifty soldiers and one CIA contractor for crimes against 3

12 detainees (NPR All Things Considered 17 AUG 2006 Former CIA Contractor Guilty of Prisoner Abuse), many feel that these events have severely damaged not only the image, but also the reputation and the moral standing of the United States. Another aspect of the torture question is the legality of the United States actions in regards to international law and domestic law. Questions surround the Geneva Conventions: Do the conventions apply to a nonstate actor? and What is the requirement of the United States to act in accordance with the Geneva Conventions while engaging in the GWOT? Many organizations and governments claim that while parts of the Geneva Conventions may not be applicable in all scenarios of the GWOT, human rights law is always applicable and must be practiced. Many people have accused President Bush s legal advisors of attempting to redefine the Geneva Conventions in order to support the United States actions. United States domestic law also has a part in this debate. Many argue that the current treatment of detainees would be unacceptable in a United States criminal court and these actions violate United States criminal code. The United States Constitution calls for specific treatment of people accused of crimes which many claim is still applicable to terror detainees. Today in the United States, there is a heated debate between the President, Congress, and the Senate over issues surrounding the GWOT detainees. While these institutions debate over clarification of interrogation techniques, prosecution procedures of captured terrorists, and the impact of this on the Geneva Conventions, many in the media continue the debate on torture and its applicability in the United States fight against terrorism. Many agree with Senator John McCain that 4

13 allowing torture would in the long run hurt United States soldiers who get captured (The New York Times, 18 September 2006). In addition to these legal questions are complex moral questions. World religious leaders and organizations, such as Pope Benedict XVI and the Catholic Church, condemn the use of torture. Others argue that torture is evil no matter how it is used and that if torture is allowed, it will lead to greater and more frequent abuses, not only in regards to GWOT detainees but to common criminals. On the other side of the argument are those who argue that the United States should not show mercy to an enemy that has no concern for innocent civilians and actually tells its fighters to use accusations of torture against their captors. Commentators, such as Charles Krauthammer, use the example of the ticking-time-bomb interrogation scenario to justify torturing one person to possibly save thousands. Still others, such as civil rights lawyer Alan Dershowitz, advocate the legalization of torture in the form of torture warrants in order to control and limit the use of torture. Some final questions raised as a result of the torture debate are the effects of torture. Many are familiar with the effects of torture on Nazi prisoners, but what effect does torture have on those who carry it out? Is torture actually effective and can interrogators actually get intelligence or useless information? Finally, what is the effect of torture on the image of the United States? Many assert that torture has hurt the United States world standing, given rogue states and dictatorships justification for the use of torture and played into the hands of Al Qaida in its effort to obtain the support of moderate Muslims against the West. 5

14 In summary, the problem that the United States faces today is the use of torture as a tool in the GWOT and its effectiveness in securing the 2006 National Security Strategy s goals. The United States is facing an enemy which has no regard for the rules of war; it thinks nothing of attacking civilians and wants to destroy the western way of life. This enemy is happy to die for his cause. In response to this, the United States initiated its GWOT. Since the 9/11 attacks, the United States has come under attack from the international community for its policies on using torture for intelligence gathering, its terrorist justice system, and the actions of its soldiers fighting in Iraq and Afghanistan. Accusations of torture by terrorist detainees at the United States detention center at Guantanamo Bay, pictures from Abu Ghraib, and secret CIA prisons have all contributed to calls for the United States to stop these practices. Many argue that this negative image hurts the United States fight against terrorism, while others argue that everything must done to gather the intelligence, even if it means using torture. In light of this, the primary research question is: Is torture a viable tool for use in achieving goals as outlined in the 2006 National Security Strategy? In order to answer this question, several other questions will need to be answered: What is torture? What are the possible ways torture can affect the national security strategy? Is torture actually effective? How is the use of torture viewed ethically, culturally, and religiously? What are the legal implications of the use of torture, both within United States and international law? and What are the different arguments for and against the use of torture? 6

15 Limitations and Delimitations In researching this issue unclassified information will only be used in order to ensure widest dissemination. Research will end on 1 January 2007 in order to avoid having to consider major policy changes due to election results that may affect the premises as well as the results of the study. The use of torture will be assessed against the 2006 National Security Strategy for the same reasons. Existing works on religious views on the use of terror will be the primary source for this area. Research on this topic will also depend on existing legal interpretations of things, such as the Geneva Conventions, United States laws, and other international treaties. The definition of torture will come from the United Nations Convention Against Torture (CAT). While the Geneva Conventions serve as the basis for the Law of War, they do not contain a definition of torture. The CAT has been signed by the United States and is applicable in both war and peace. Due to time constraints and the scope of this work, Dr. Jack Kem s Ethical Triangle Ethical Decision-Making Model will serve as the ethical decision making model. In order to refine the scope of research, the study of torture will be limited to only the use of interrogational torture. Key Definitions Below is a list of key terms and definitions as needed to help clarify the research. Torture. Any act by which sever pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or is suspected of committing, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or 7

16 suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official of other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions (Elsea 2004, 9). Geneva Conventions. International treaty adopted in 1949 which provides a legal core that ensures protection for wounded combatants, sick and shipwrecked members of armed forces, medical personnel, prisoners of war, and civilians detained for security purposes in wartime, living in war zones, or under military occupation. The Geneva Conventions establish rules for lawful combatants and regulate interstate conflict. A set of sub rules, Common Article 3, apply during civil war. (Hoffman 2005, 20). International Humanitarian Law/Law of War/Law of Armed Conflict. The rules which, in the times of armed conflict seek to protect people who are not or are no longer taking part in the hostilities, and to restrict the methods and means of warfare employed. The International Committee of the Red Cross further defines it as international treaty or customary rules which are specially intended to resolve matters of humanitarian concern arising directly from armed conflicts, whether of an international or non-international nature (International Humanitarian Law: Answers to Your Questions [2004], 4). Human Rights Law. Rules and treaties that protect individuals at all times. The primary goals of these laws are to protect citizens from their own governments. Some treaties allow for special derogations during armed conflict (International Humanitarian Law: Answers to Your Questions [2004], 36). Customary International Law. The Statute of the International Court of Justice defines customary international law as a general practice accepted as law. The International Committee of the Red Cross further states that in order for the law to be 8

17 customary, there must be state practice--usus, and a belief that such practice is required, prohibited, or allowed as a matter of law (Henckaerts and Doswald-Beck 2005). Convention Against Torture (CAT). The CAT is a treaty that bans torture under all circumstances to include external threats, states of emergency or orders from a superior officer or authority. The CAT forbids a country to return a refugee or prisoner to a country if there is a reasonable belief that he will be tortured. States must investigate and prosecute torture if it is believed that it was conducted within the states jurisdiction or extradite those suspects as required. Signatories are also required to provide prevention training to law enforcement and military personnel, review interrogation methods and investigate all allegations. Evidence obtained as a result of torture is forbidden. Cruel and degrading treatment is also against the CAT s provisions. The CAT also established the United Nations Committee against Torture. In this chapter, the problem of torture has been defined and several key issues that must be addressed in the course of researching the torture question have been identified. Limitations, delimitations, and key assumptions have been outlined. Finally, specific terms have been defined in order to ensure a common understanding of key ideas. Chapter 2, will consist of a literature review in which what has already been written on torture will be discussed. This chapter outline follows: I. Legal a. International b. United States domestic II. Ethical a. Pro Torture b. Against Torture c. Others III. Religious Views IV. Effects 9

18 a. Effectiveness b. Effects on tortured c. Effects on torturer 10

19 CHAPTER 2 LITERATURE REVIEW In researching of the primary question, Is torture a viable tool for use in achieving goals as outlined in the 2006 National Security Strategy, three main themes exist that are prevalent in the literature that has been written on the United States use of torture. Most authors base their arguments on evidence pertaining to at least one of the following areas: legal considerations, ethical considerations, and the effects of torture. Legal Considerations There is large body of literature regarding the legal aspects of torture and the Global War on Terror. Existing legal literature can be divided into two areas: international law and domestic United States law. Basic international law resources consist of the original source documents, such as the Geneva Conventions of 1949 (Geneva Conventions) and the Convention Against Torture (CAT). Both the United Nations Human Rights and International Law web sites provide legal background information regarding the provisions of the treaties and conventions. The ICRC also provides commentary on the Geneva Conventions which include historical reasons for the wording of certain provisions as well as their interpretation of the intent of the legislation. The ICRC, along with United Nations Special Rapporteur on the question of torture, feel that it is the intent, rather than the letter, of these conventions that must be upheld. Both organizations question the United States reasoning behind indefinite 11

20 detentions, President Bush s declaration that all GWOT detainees were illegal combatants, and many of the positions taken by his administration in the Torture Memos. The United Nations web site, provides the primary source for the original text of international humanitarian law and human rights treaties, to include the Geneva Conventions, their Additional Protocols and the CAT. The two most useful sections for researching torture are the human rights page and the international law page. The international law page provides the original text of the Geneva Conventions along with legal commentaries. The human rights page provides access to treaties, documents, meetings, and special reports relating to torture. In accordance with provisions of the CAT, there is a Committee Against Torture. The United Nations also has a Special Rapporteur on the question of torture. Member states are required to submit an initial report and then one every four years on what they have done to support the convention (Department of Public Information ). The 23 December 2005 report Civil and Political Rights, Including the Questions of Torture and Detention provided an international perspective of what torture is and what the difference is between torture and cruel and degrading treatment (Nowak 2005, 1-15). There are shortfalls within the international legal framework that is brought out in much of the literature. The most important is the failure of almost all documents to clearly define terms and thus provide a basic understanding. The CAT is the only document to define torture, but it, along with all of the other documents do not characterize interrogation methods as constituting torture or not. Another issue is the varied interpretations of many of the components of these treaties. Mr. Hoffman and others provide legal arguments on why Al Qaida should not be considered legal 12

21 combatants. The United States Supreme Court has the opinion that they are legal combatants. Other articles argue that the Geneva Conventions imply that there should be another category that includes organizations such as Al Qaida. Another great difference in opinion is what acts constitute torture and how does this differ from cruel, inhumane and degrading treatment. The Bybee Memorandum says that torture should be equivalent to organ failure or death (Adams, Balfour and Reed 2006, 684). The European Court of Human Rights ruled that the British acts of placing hoods over Irish Republican Army prisoners and subjecting them to temperature extremes were cruel and degrading but did not constitute torture (Elsea 2004, 21). Organizations such as the United Nations and the ICRC both argue that indefinite detentions, the inability to communicate with family and not being allowed to practice their faith constitute torture. There were no instances where the authors use the argument that torture is not illegal; all agree that torture is forbidden within international humanitarian law and human rights law. Information regarding a humanitarian perspective on the legal aspects of torture is the ICRC home page ( The mission of the ICRC is to protect victims of war and violence as a neutral organization. As a result, the ICRC often conducts visits of both prisoners of war, and other detainees and makes recommendations to captors in regards to their level of care and treatment. The website contains the original texts of the Geneva Conventions along with legal commentaries. Also on this website are downloadable publications such as International Humanitarian Law: Answers to Your Questions which provide information referencing the Geneva Conventions and other instruments of international humanitarian law and human rights law (International Committee of the Red Cross 2004). Finally, the 26th International Conference of the Red 13

22 Cross and Red Crescent requested that the ICRC conduct a special study (Customary International Law: Questions and Answers) to identify and facilitate the application of customary international law. This article provides a short synopsis of some of the main points identified in the ICRC s eight year study. Explanations included are why is customary law binding and how is it enforced. Other items of interest on the website are speeches, publications and special reports dealing with international humanitarian law, human rights and other related issues (International Committee of the Red Cross 2005). The second major component of legal arguments consists of United States domestic law. Most authors and legal professionals on panels argue that the Torture Memos represent a very narrowed and flawed view of international law. All authors have found potential faults in domestic legislation enacted as a result of Abu Ghraib. The biggest argument is that the Detainee Treatment Act and the Military Commissions Act do not do enough to prevent non-military organizations from conducting torture or using cruel, inhumane and degrading interrogation methods. Many also see fault in military law in the fact that although Field Manual : Human Intelligence Collector Operations approves interrogation methods, these manuals are subject to change and may not always contain acceptable techniques. Most authors and legal panelists believe that the Bush Administration has made serious mistakes in its interpretation of international humanitarian law and human rights law and feel that something needs to be fixed. Only one author provides case studies of United States actions regarding torture and cruel, inhumane and degrading treatment. Two articles from the Harvard Human Rights Journal from 2001 and 2006 are helpful in researching legal aspects of torture. The first article The International Law of 14

23 Torture: From Universal Proscription to Effective Application and Enforcement provides not only an explanation of articles of human rights treaties and conventions, but also outlined international and United States case studies with their prevailing points of view on the subject of torture and international humanitarian law (Nagan and Atkins 2001, ). Further analysis is found in another article Recent Developments: Detainee Treatment Act of 2005 that provides an analysis with benefits and limitations from a human rights perspective of this piece of legislation (Suleman 2006, ). Further legal analysis can be found at the Center for Defense Information s Law Project, which provides analysis of legal decisions made by the United States on torturerelated issues, such as Hamdan v. Rumsfeld, a Supreme Court case in which the court declared that military commissions set up at the time by President Bush violated the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. A different point of view is found in Michael Hoffman s Rescuing the Law of War: A Way Forward in an Era of Global Terrorism. Mr. Hoffman contends that the legal issues regarding the GWOT are not really as difficult as they are sometimes portrayed. In the article, he explains the existing legal framework, presents problems in applying the laws and also provides analysis on the current legal interpretations. He recommends that the executive branch with congressional oversight adapt the customary laws of war for unlawful belligerents (Hoffman 2005, 18-35). Several universities and colleges have hosted panels and symposiums in which legal aspects of torture are discussed. UVA Lawyer conducted a panel composed of law school professors which addressed the topic the role of international law in the GWOT. In it, the panelists discussed the use of international law precedents regarding detainees 15

24 from the GWOT. All agreed that the United States approach was wrong and that international cooperation was important. As the world s only superpower, the panelists discussed the image of the United States and how that its actions serve as an important international model (UVA Lawyer 2005). Case Western Reserve Law School hosted a symposium and published many of the speeches in its Journal of International Law. In his article Torturing the Law, Jose E. Alvarez provides a detailed analysis of how lawyers misinterpreted applicable international and domestic law (Alvarez 2006, ). Michael Newton discusses the legal aspect of contractors and interrogations in War by Proxy: Legal and Moral Duties of Other Actors Derived from Government Affiliation (Newton 2006, ). Finally, Amos Guiora and Erin Page provide not only legal definitions of torture from current coalition partners but also discuss the effectiveness of torture in the ticking-timebomb scenario in their article The Unholy Trinity: Intelligence, Interrogation, and Torture (Guiora and Page 2006, ). The final major legal resource on legality of torture is the Congressional Research Service which has published and regularly updates a series of articles regarding the issue of torture. The War Crimes Act: Current Issues provides an analysis on the content of the War Crimes Act of 1996, the effects of Hamden v. Rumsfeld, and also discusses amendments made to the War Crimes Act by the Military Commissions Act of 2006 (Garcia 2006a, 1-9). United States Treatment of Prisoners in Iraq: Selected Legal Issues provides a summary of applicable articles of the Geneva Conventions and other international agreements regulating human rights issues. It also provides a description of domestic United States law which covers detainees and human rights and punishments 16

25 for violations. Legislation described includes the Uniform Code of Military Justice, 18 United States Code Section 7, and the Military Extraterritorial Jurisdiction Act. It also discusses the provisions and possible shortfalls of the antitorture provision of Public Law (H.R. 1268) (Elsea 2005, 1-28). U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques describes the provisions of the CAT and how these work with existing United States antitorture legislation (Garcia 2005, 1-20). Interrogation of Detainees: Overview of the McCain Amendment describes the provisions as well as strengths and weakness of the Detainee Treatment Act and how legislation of the Military Commissions Act of 2006 affects the legislation (Garcia 2006b, 1-10). All of these articles are updatable based on current events. Ethical Considerations The next major group of writings on torture is those providing ethical arguments both for and against the use of torture. Included in this category are religious views on torture. The first and perhaps the largest group is authors arguing against the use of torture. Henry Shue argues against torture by refuting the reasoning that if killing is worse than torture, then some torture should be allowed. He reasons that torture can only happen after the victim has surrendered; therefore, torture is not analogous to just war and is worse than killing because it is an attack on the defenseless (Shue 2004, 52). Other arguments echo themes contained in religious arguments against torture. Many authors argue that banning torture upholds the symbol of human dignity and that torture debases the victim as well as the torturer. Along these lines, others argue that the United States is a democracy and torture is against everything that democracies profess to 17

26 believe in. Also, banning torture shows that national security does not trump human rights and upholds existing United States laws and international treaties. Another argument against the use of torture is used in context of the ticking-timebomb scenario. Many argue that this scenario is unrealistic because there is no way to be 100 percent certain that the suspect is knowledgeable and that he will even talk in time to avert the catastrophe. Also, questioned is how far the interrogator must go in torturing the subject; should he threaten the suspect s wife and children? Many say this use of torture will lead to a routine use of torture in nonemergency situations. Setting the precedent for the routine use of torture is another argument against the use of torture. This argument, often called the slippery-slope argument, says that once torture is allowed, then it will become more common and society will fall down a slippery slope where torture is routine and commonly used for nonemergency situations. A final argument against torture is that an absolute prohibition on torture is the best way to enforce the laws. If extremely coercive techniques were allowed, there would be no simple way to enforce their use. Some argue that torture warrants will not work due to the time required and also the precedent that they will lead down the slippery slope. Total prohibition is the easiest way to enforce the existing laws. While a majority of the ethical discussions regarding torture is generally against the use of torture, there are some that argue in favor of limited use of torture in certain situations. In regards to the ticking-time-bomb scenario, many argue that the decision maker must choose to do the greatest good for the greatest number; leaders must choose the action which will produce a less-worse outcome. This goes hand in hand with the 18

27 theory that politicians must be willing to have dirty hands and sacrifice their personal morals in order to do the most good for the greatest number of people. Other arguments in favor of torture say that it is a case of the rights of the victims versus the rights of the suspect. In the ticking-time-bomb scenario, the aggressor has created a situation in which someone must die. Many argue that the rights of the aggressor should not trump the rights of his victims and therefore the aggressor should be tortured if necessary. Religious Considerations The next category of writings examined was religious arguments regarding torture. Religious laws and teachings are another major source of ethical arguments regarding terrorism. All major Western religions (Judaism, Christianity, and Islam) provided similar themes in arguing against the use of torture. No mainstream religious group argued that torture is applicable under its doctrine. Roman Catholic views on torture can be found in encyclicals (Pope s letters to the Bishops), World Day of Peace Messages, and in the 2nd Vatican Ecumenical Council writings. The major theme running through these works is that torture is a violation of human dignity and is therefore always wrong. Pope John Paul II counters the tickingtime-bomb theory by saying that good intentions can diminish evil, but not remove it; civil authorities and individuals never have the right to violate human rights (Paulus 1993). Pope Benedict XVI shares this view and upholds the concept of international humanitarian law and actually calls for it to be updated to ensure that the current operating environment is reflected in its protections (Benedict 2006). Applicable documents include Message of His Holiness Pope Benedict XVI for the Celebration of the 19

28 World Day of Peace, 1 January 2007; The Human Person; The Heart of Peace for the Celebration of the World Day of Peace, 1 January 2006; In Truth, Peace; and Veritatis Splendor: Regarding Certain Fundamental Questions of the Church s Moral Teaching. Protestant teachings continue the theme of torture as an affront to human dignity. The National Council of Churches, a coalition of Christian churches including Protestant, Anglican, Orthodox, and Evangelical, outline this in their A Statement on the Disavowal of Torture when they state that the use of torture does not uphold the Golden Rule; it not only debases man, who was created in God s image, but also destroys peace and the prospects of peace (National Council of Churches, 2006). A similar theme of the protection of human dignity is found in Jewish writings. There are two areas where Jewish thought derives its logic: Jewish law and Jewish tradition. Jewish law says that under some circumstances, torture for the purpose of saving lives could be justified (Weintraub 2005). Jewish tradition counters this argument with the fact that humans are created in God s image, thus the humiliation of the living is a direct affront to God; the use of torture destroys dignity of the tortured and the torturer (Rosen 2006). The Central Conference of American Rabbis (Reform movement) and the Rabbis for Human Rights--North America (all movements), both have denounced the use of torture in the form of letters of protest to the current United States administration. Rabbis for Human Rights has published a booklet entitled A Rabbinic Resource on Jewish Values and the History of Torture. This booklet contains several articles regarding Jewish law, tradition, and the application of Jewish law in Israel regarding torture (Rabbis for Human Rights North America 2005, 1-30). 20

29 Effectiveness of Torture The final category of examined works on torture includes the effects of torture. The effects of torture are best examined in four categories: the effects of torture on the person being tortured, the effects of torturing on the torturer, other effects of torture, and the overall effectiveness of torture. The first category, the effects of torture on the victim comprises a majority of the documents on this aspect of torture. Most of what has been written has been done by professional medical organizations and deals with psychological, as well as physical considerations of treating torture survivors. Effects illustrated include depression, suicidal tendencies, anxiety, phobias, flashbacks, inability to trust medical personnel, posttraumatic stress disorder, as well as physical pain from beatings, shock, and broken bones. No article differentiated between the types of torture victims: were the patients victims of interrogational torture or other forms of torture. The second category is the effects of committing torture on the interrogators. Little was found on this in the studies of physicians who treated torture victims; most of the evidence presented was incidental to the authors overall arguments against torture. Common effects cited were the fact that the torturers would be morally and socially sacrificed in order to use torture and a higher incidence of more intense symptoms of posttraumatic stress disorder. The third area of effects of torture consists of other effects that torture may have on things besides its victims. Dr. Jean Arrigo examined what would be required for the establishment of torture and the effects that required actions would have on existing institutions. Among the changes required was a torture training program and medical 21

30 personnel participation (Arrigo 2006). Several others provide the slippery slope argument as an effect of torture on society. Others have also presented the French experience in Algeria as an example of what can happen to a society that allows torture (DiMarco 2006,63-76). The final category is the actual effectiveness of torture as an interrogation technique. Many articles will say that it either works or work, but will not cite specific studies that back up these assertions. A few authors do back up their assertions that it does not work with case studies and other documentation. The first argument that torture does not work is historical precedent. John H. Langbein uses Continental European medieval law to show that torture does not. Torture was used to add to the proof of someone s guilt. Torture would have to be based on some existing proof and the words of the tortured would be followed. In reality, confessions were rarely investigated and the victim often recanted his confession on the stand and would then have to be retortured (Langbein 2004, 93). Other authors use the example of Lieutenant Colonel West in Iraq and the soldiers of Abu Ghraib as proof that torture does not result in useful intelligence. In examining the existing literature on torture, there are three categories of information: legal considerations, ethical considerations, and the effects of torture. Legal considerations consist mainly of international and domestic laws prohibiting the use of torture, but do not clearly define what actually constitutes torture. Legal commentaries support either a letter of the law approach to antitorture enforcement or a spirit of the law approach. Many feel that much of the legislation is vague and open to different interpretations. Ethical considerations consist of major Western religious laws and teachings, all of which claim that torture degrades the human body which was made in 22

31 God s image and therefore is against God. Other ethical arguments consist of the slippery slope argument, the politician with dirty hands argument, and do what produces that best result for the most people. Literature on effects covered effects on victims, torturers, other victims, such as society, and overall effectiveness of torture in gathering intelligence. All of the effects indicated that there were no good effects of using torture other than the possibility of obtaining information and saving lives; this was, however, shown by many authors to be a rare event. The next chapter will discuss the research methodology used in answering the question, Is torture a viable tool for use in achieving goals as outlined in the 2006 National Security Strategy? 23

32 CHAPTER 3 RESEARCH METHODOLOGY The torture debate in the United States has generated controversy, first with the establishment of the detention facility at Guantanamo Bay, Cuba and later with the publications of photos of prisoner abuse at Abu Ghraib. Other issues such as the Central Intelligence Agency s use of secret prisons and the practice of extraordinary rendition have also fueled the torture debate. The fifth anniversary of the establishment of Camp X Ray at Guantanamo brought the question to the public once again as the United Nations called on the United States to close the facility. In response to these accusations, many newspapers and television stations have published opinion/editorial pieces supporting or denouncing the use of torture. Meanwhile, different professional journals and organizations have done the same based on their specific area of study and expertise. Most authors give their opinions based on one thing such as their ethical beliefs, current laws, and medical analysis. Very few authors have actually put personal beliefs aside and held up the torture dilemma to the scrutiny of an ethical decision making model. This chapter will describe a two part research methodology. The firs part will provide a description of the ethical decision making model and the required steps necessary to analyze the torture dilemma in the context of this model. The second section will explain how the results from the decision making model will be applied to the 2006 National Security Strategy. In order to obtain the required information, a meta analysis of existing literature has been conducted. Resources included international organizations, professional journals and associations, and writings of ethical philosophers as well as religious officials and 24

33 scholars where available. Subject matter expertise was used to explain concepts when appropriate and available. In answering questions regarding medical effectiveness, sources were used that either based observations on their personal clinical experience or on documented clinical observations. In order to answer questions regarding the religious view of torture, official church documents and national level religious decrees were the primary sources. When applicable, articles on religious law from different authors were used. In the case of Jewish thoughts on torture, an attempt was made to find information written by different sects (Reform, Orthodox, etc.). Finally, in researching the effectiveness of torture, sources that actually cited historical examples as well as subject matter experts provided primary references. An author that stated simply that torture was not proven to work was not included in arguments regarding the effectiveness of torture. In order to answer the research question, analysis is broken down into two parts. The first part will consist of taking the results of the research and analyzing them in accordance with Dr. Jack Kem s Ethical Decision Making model. The first question to answer is: is the use of torture an ethical dilemma or is it a case of having the fortitude to do what is right. If deciding whether or not to use torture is not an ethical decision, then the ethical decision making model will not be a feasible comparison. If it does fit the criteria of an ethical dilemma, then analysis will continue with the use of torture in regards to national security objectives. The next step in the analysis is to determine the courses of action available to the United States in regard to torture based on the existing literature. Once courses of action have been outlined, analysis based on the three approaches to ethical decision making (principles based, consequences based, and virtues based) will 25

34 be conducted (Kem 2006, 27). In the principles based analysis, one must look at the courses of actions based on not only what rules exist, but also on what rules should exist (Kem 2006, 27-28). The legal portion of the research will form the bulk of the answer to this question. It will however, be influenced to a degree by the religious outlook on torture, especially if a particular religion has rules, laws or declarations regarding torture. The courses of action will then be examined in terms of their consequences. The questions that will be answered in this section are: What are the results and consequences of using torture? and What produces the greatest good for the greatest number? (Kem 2006, 29-30). Information gathered on ethical arguments regarding torture as well as the effectiveness and effects of torture will provide the basis of the analysis. Finally, courses of action will be examined against the virtues based approach. In this analysis, the courses of action will be examined and then compared to the results of research on the effects of torture, religious views of torture and ethical views of torture. After the best course of action has been determined, that course of action will be examined against the main principles that President George W. Bush outlined in his 2006 National Security Strategy. In summary, the goal is to arrive at an answer to the torture question that is based on several different aspects to include legality, religious opinion, ethical belief, effects and effectiveness. Very little has been done to actually hold this question to the light of ethical decision making. The chosen model requires that the problem be defined, the courses of action determined, and the question examined in regards to three different aspects: principles, consequences and virtues. The answers to the secondary questions will provide the answers to each approach. Once answers for each course of action have 26